Behind the hidden warning in Justice Alito's USAID dissent

In a 5-4 decision, the US Supreme Court has issued a caveat to Trump’s claim that presidents can do whatever they want. Ordering the administration to disburse $2 billion in USAID grants, the majority ruled that Trump must comply with the rulings of US District Judge Amir Ali.

Although the narrow ruling has been widely applauded as at least a temporary victory for the rule of law, as I see it, the victory is overshadowed by ominous signaling in the dissent.

Of the four dissenting justices—Alito, Thomas, Kavanaugh and Gorsuch— at least two are ethically compromised by their refusals to recuse from cases involving their own billionaire benefactors. Justices Alito and Thomas have also faced credible demands for their own impeachments following their partisan embrace of Trump’s MAGA ethos.

They did not just dissent in the USAID ruling, they dissembled. They lied about both the court record and the district court judge, and they drew a map for the Trump administration to follow in order to frustrate the case going forward.

The majority protected the legislature’s role

The Court's 5-4 majority opinion, in which justices Roberts and Coney-Barret joined the three liberal justices, narrowly protected Congress’ power of the purse, holding that under Article I, Section 8 of the U.S. Constitution, since Congress had already appropriated the USAID and it was already signed into law, Trump could not legally freeze it. In other words, a president does not have the power to break, disregard, or rewrite laws just because he disagrees with them.

Art. I gives Congress the explicit power of the purse, but more than that, Congressional authority to pass legislation and control the nation’s money is, by design, a Constitutional check on the power of the presidency.

Protecting legislative purview is key to our vitalseparation of powers. But the dissenting justices conveyed a willingness to scrap that centuries-honed balance, by expanding the executive’s power through their own hubristic pen, without the necessity of a burdensome Constitutional amendment.

Alito didn’t just dissent. He dissembled, and lied.

In a dissent that reads like a partisan diatribe from a Trump/Vance/Musk social media post, Alito wrote an eight page rant in response to the majority’s one paragraph opinion. He also blatantly misrepresented the record.

As Chris Geidner observed in his excellent newsletter, Alito wrote dismissively that the District Judge issued a “second order” because he was “frustrated” with the pace of aid disbursement under his earlier order. This was patently false. Judge Ali, in fact, had to issue repeated orders against relentless pushback from the Trump administration. A quick scan of the docket sheet easily reveals that the judge took extraordinary pains to work with the Trump administration and issued at least five orders, not “two” as Alito claims, due to Trump’s contumacious disregard of the rulings.

The administration’s continued nonpayment in defiance of Judge Ali’s repeated orders is what prompted Ali to issue his final order including a payment deadline. But instead of reminding Trump that presidents must even obey court orders they disagree with, Alito disparaged the orders themselves.

Alito attacked the District Judge and wrote a map for Trump going forward

In a functioning democracy where the rule of law prevails, this decision would have been 9 to 0. Simply put, Congress awarded the aid and passed the law; the president has to follow it. Instead, Alito inveighed misleadingly:

Does a single district-court judge who likely lacks jurisdiction have the unchecked power to compel the Government of the United States to pay out (and probably lose forever) 2 billion taxpayer dollars?

The answer to that question should be an emphatic “No,” but a majority of this Court apparently thinks otherwise. I am stunned.

Today, the Court makes a most unfortunate misstep that rewards an act of judicial hubris and imposes a $2 billion penalty on American taxpayers.

Lamenting that the US government will “probably lose forever” the $2 billion ordered to be disbursed, Alito appears not to understand how federal aid works. The legislature, not Judge Ali, decided how much aid to grant, to whom, and for what. Such aid appropriations are never expected to be reimbursed, so Alito calling them a “$2b penalty on American taxpayers” was pure, results-driven propaganda.

There’s stunning hubris here all right. But it emanates from Alito, for arguing that Trump can disregard federal law simply because he and the dissenting justices don’t approve of feeding the poor or treating the sick, notwithstanding their own self-professed Catholicism.

The dissent tries to help Trump get around the majority ruling

Salting the wound, the dissenting justices even advised Trump how to get around the majority’s ruling. They concluded, “Even if the majority is unwilling to vacate the District Court’s order, it should at least stay the District Court’s enforcement order until the Government is able to petition for a writ of certiorari.” By indicating that they will grant the writ of cert, Alito signaled that dissenting justices stand ready to review the case on the merits, which could delay the aid for months and possibly over a year.

The nonprofit groups and businesses that sued for breach of contract are still waiting for the money they are owed, although in many cases the damage has already been done. Organizations around the world have already cut services, stopped feeding the hungry, and laid off thousands of workers as a result of Trump’s efforts.

That Trump put an admitted drug addict in charge of destroying the federal government under the ruse of finding “efficiencies” is horrifying enough. That four Supreme Court justices support Trump’s power grab, and are willing to lie about it, suggests his coup may well succeed.

Sabrina Haake is a 25+ year federal trial attorney specializing in 1st and 14th A defense. Her columns are published in the Chicago Tribune, Salon,Raw Story,Out South Florida, Windy City Times, MSN, Alternet, and Smart News. Her Substack, The Haake Take, is free.